John Gideon & Ellen Theisen: Is HAVA Being Abused?

Is HAVA Being Abused?

The 1990
Voting System Standards are Certainly Outdated. Are They
Illegal, Too? by John Gideon and Ellen
Theisen

Section 222(e) of the
Help America Vote Act of 2002 (HAVA) provides that the 2002
Voting System Standards adopted by the Federal Election
Commission are deemed to be adopted by the Election
Assistance Commission (EAC) as the first set of voluntary
voting system guidelines adopted under HAVA. [LINK]

HAVA was
enacted on October 29, 2002. So why has the National
Association of State Election Directors (NASED) continued to
use the 1990 standards as the basis for qualifying some
voting systems AFTER federal law declared the 2002 standards
to be the official guidelines?

Before HAVA, NASED was in
charge of the qualification process. HAVA gave the EAC
responsibility for administering the qualification process,
but since the Administration was nearly 10 months late
appointing the commission members, the qualification process
remained in the hands of NASED, and little changed.

In
this process, voting systems are tested by Independent
Testing Authorities (ITA) against federal Voting System
Standards (VSS). Once the system passed the testing, NASED
reviewed the report from the ITA and if all was in order,
NASED assigned the system an official ID# indicating that it
met the federal standards. State election officials consider
NASED-qualification an important factor when they are
certifying systems for use in the state, and in some states,
qualification is required by law.

Recently, when we saw a
news article referencing a rule that requires all voting
systems to meet the 2002 standards after January 2005, we
were surprised. We contacted Brian Hancock, the ITA
Secretariat appointed by the EAC, and asked him about it. In
response, he wrote that, "NASED has incorporated testing to
the 2002 VSS in several stages since these Standards were
implemented. The attached NASED advisories explain this
process."

The advisories explained a lot.

Early in
2003, shortly after HAVA was enacted, NASED adopted "Voting
System Testing Updates" to the qualification procedure. An
advisory of these updates was distributed to voting machine
manufacturers, state election directors, and local election
officials. The updated rules address the transition to the
2002 standards adopted by HAVA.

after January 8,
2003, revisions to previously qualified systems and systems
entering testing must meet the 2002 standards.

until January 1, 2005, if modifications are made to a
component of a system, it is not necessary for the entire
system to meet the 2002 standards, but will continue to be
recognized as a qualified 1990 system.

after
January 1, 2005, all system revisions must meet the 2002
standards.

after January 1, 2005, if
modifications are made to a component of a system, the
entire system must meet the 2002 standards to retain its
qualification status.

This sounds like a
reasonable plan. However, the information in the list of
systems qualified between December 2003 and March 2005 seems
to indicate that NASED didn't follow its plan. For example:
[2]

AccuPoll
Version 2.3.14, with a host of software and hardware, was
qualified to the 1990 standards in February
2004.

Diebold GEMS Version 1-18-18 was qualified
to the 1990 standards in July of 2003; GEMS 1-18-19, in
February 2004; and GEMS 1-18-22G, in January
2005.

ES&S Unity Version 2.4.2 was qualified to
the 1990 standards in February 2004, along with a long list
of components including the iVotronic touch screen version
8.0.

Hart Intercivic eSlate Systems 3.0, 3.1,
3.2, 3.3, and 3.4 (including the Ballot Now scanner, a
couple of versions of the Judges Booth Controller, and other
components) were all qualified to the 1990 standards during
the period from September 2003 to August 2004.

Sequoia WinEDS 3.0 and 3.0.134, along with quite a few new
renditions of the AVC Edge touch screen and AVC Advantage
push button DRE, were qualified to the 1990 standards during
the last half of 2003 and throughout 2004.

In fact
many of the voting systems that we've seen malfunction, heat
up, break down, switch votes, and record high undervote
rates were qualified by NASED to the 1990 standards
after federal law made the 2002 standards the official
guidelines — and after NASED itself adopted rules
prohibiting both changed and new systems from being tested
to the 1990 standards.

On April 18, 2005, the NASED Voting
Systems Board adopted an addendum to its testing update. The
new advisory points to two of the rules in the update and
states: [3]

This addendum serves only as
clarification of these procedures and in no way diminishes
or negates the effect of any procedure adopted in February
2003.

Here are the two rules the
addendum doesn't diminish or negate:

1. After January 1,
2005, NASED will no longer offer ITA testing for revisions
to any voting system approved prior to the use 2002 Voting
Systems Standards.

2. After January 1, 2005, any revisions
which do not make the voting system totally compliant with
the 2002 VSS become non-qualified under the national testing
program.

Now here's the clarification that doesn't
diminish or negate those rules in any way:

In order to accommodate new devices
which may interface with either 2002 or 1990 qualified
voting systems with the goal of making those systems HAVA
compliant, NASED adds the following statement to the 2003
Testing Update document:

After January 1, 2005, only
those new devices not currently a part, package or upgrade
to an existing 1990 qualified voting system may be tested
for qualification with such voting system. These devices
must be tested and meet the 2002 Voting Systems Standards
and no other portion of a previously 1990 qualified system
may be altered or upgraded to accept this
device.

Exactly four weeks after
the addendum was adopted, NASED assigned a qualification ID
number to the Diebold AccuView, the touch screen DRE with a
voter-verifiable paper audit trail printer. The new system
was qualified to the 1990 standards.

We asked Brian
Hancock about this apparent contradiction of the rules, and
he responded, "As for the Diebold system with AVPM, it will
still technically be 1990. All hardware is 2002 tested, but
there are still portions of the software not fully 2002.
"

We replied with questions asking how the Diebold
AccuView could be qualified, partly to the 2002 standards
and partly to the 1990 standards, given the rules in the
NASED advisories. Mr. Hancock referred us to Tom Wilkey: "As
for the NASED decision process on the 2003 and 2005 guides,
you will need to speak with Tom Wilkey as Voting Systems
Board Chairman. Tom can most easily be reached via
email."

Unfortunately, Mr. Wilkey has not responded to our
emails, and we are left with quite a few questions:

1.
How does a rule allowing new components to bypass the 2002
standards NOT negate a rule that requires the entire voting
system to comply with 2002 standards?

2. When the newly
developed printer was added to the Diebold system, did it
really NOT require any portion of the Diebold touch screen
to "be altered or upgraded to accept this device"?

3. Why
were so many new and revised voting systems qualified to the
1990 standards after HAVA made those standards obsolete?

4. Why did NASED break its own testing rules consistently
throughout 2003 and 2004, and then adopt a procedural
"clarification" to avoid breaking them in 2005?

5. Are
the voting machine manufacturers making false claims when
they tell their customers that their products meet federal
standards, or is NASED violating Section 222(e) of HAVA by
qualifying systems that don't meet the standards HAVA
established?

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